Thursday, July 10, 2014

'PHONE INTERCEPTIONS: TANZANIA TO LAND IN COURT?

Written by MNAKU MBANI

Friday, 27 June 2014 13:27

THE
Tanzania Consumer Advocacy Society (TCAS) says that it is expected to collect
enough evidence to sue the Government in Dar for intercepting customers data and
voice in the mobile telecommunications sub-sector.

The
TCAS executive director, Bernard Kihiyo, told Business Times that the Society
is preparing to issue a 90-day notice of the intended legal proceedings to the
Government accordingly, while it proceeds to collect evidence from at least 30
victims of the alleged interceptions.

Kihiyo
was responding to a recent report by the UK-based Vodafone which revealed that
Tanzania was fourth in the number of 'phone interceptions among the reported
countries with many data and voice interceptions!

The British company said wires had been connected
directly to its networks and those of other telecoms groups, thereby enabling
agencies to listen to and/or record live conversations – and, in certain cases,
track the whereabouts of a customer.

In the event, British privacy campaigners said the
revelations were a "nightmare scenario" that confirmed their worst
fears on the extent of snooping. “For governments to access phone calls at the flick
of a switch is unprecedented and terrifying,” they said.

In about six of the countries in which Vodafone
operates, local laws either oblige telecoms operators to install direct access
pipes, or allow governments to do so.

The company – which owns mobile and fixed broadband
networks, including the former Cable & Wireless business – has not named
the countries involved because certain regimes could retaliate by imprisoning
its staff!

“However, in every country in which we operate, we
have to abide by the laws of those countries requiring us to disclose
information about our customers to law enforcement agencies or other government
authorities, or to block or restrict access to certain services,” says
Vodafone.

Published
earlier this month, the Vodafone report further reveals that, during last year
alone, Tanzania reported 75,938 interceptions of contents, which included both
voice and data communications!

“We
are expecting to serve the 90-day notice and invite victims of interception
before proceeding to the Attorney-General (AG),” TCAS's Kihiyotold Business Times in a telephone interview.

“If
the 90-day period will pass without the Government giving out clear reasons why
it is violating the (national) Constitution, we will log our demands at the
High Court” of Tanzania, he said.

Kihiyo
further stated that data and voice interception was against Article 16,
Sections 1 and 2 of the Constitution of the United Republic and, as such, this
was of great concern to consumers.

Article 16 provides that 'every
person is entitled to respect and protection of his person, the privacy of his
own person, his family and of his matrimonial life, and respect and protection
of his residence and private communications.’

This protection of private
communications would include emails, short-message services (SMSs), mail and
telephone conversations.

“This is the ticking time-bomb
expected to explode,” Kihiyo stresses.

However, Tanzania is allowed to
intercept customers’ data and voice communications in accordance with the The National Security Act;
the Prevention of Terrorism Act, and the Criminal Procedure Act.

“All of these laws have been enacted
against Article 16 of the Constitution, which protects personal privacy, and we
need to look on the other side of the coin,” he stated.

Surprisingly, though, the Electronic
& Postal Communications Act (EPoCA-2010) does not specifically make
provision for interception of customer communications.

However, the existence of
interception powers can be implied from Section 120 of the Act which states
that 'no person, without lawful authority under the EPOCA or any other
written law, can intercept, attempt to intercept, or procure any other
person to intercept or attempt to intercept any communications.'

'An application must be made under
‘any other law’ to the Director of Public Prosecutions (DPP) for authorization
to intercept or listen to any customer communication transmitted or received,'
the EPOCA elaborates.

Only public officers, or an officer
appointed by the Tanzania Telecommunications Regulatory Authority (TCRA) and authorized by the Ministry of Science & Technology, as well as the Ministry
of Home Affairs, may be permitted to intercept such communications.

The EPOCA stipulates that subscriber information be kept within
the TCRA. The TCRA shall take charge of the monitoring and supervising of the
information so stored.

The Tanzania Intelligence &
Security Services Act [Cap 406 of the Laws of Tanzania, Revised Edition 2002]
charges the Tanzania Intelligence & Security Service with the duty to
collect information by investigation or otherwise, to the extent that it is
strictly necessary, and analyze and retain, information and intelligence in
respect of activities that may on reasonable grounds be suspected of
constituting a threat to the security of Tanzania, or any part of it.

The 1977 Constitution of the United Republic of Tanzania as amended from time
to time provides the Parliament with the power to enact and enable measures to
be taken during a state of emergency or in normal times in relation to persons who
are believed to engage in activities which endanger or prejudice the security
of the nation.

However,
Vodafone has admitted that these laws are designed to protect national security
and public safety; to prevent or investigate crime and terrorism.

In
any case, the agencies and authorities that invoke those laws insist that the
information demanded from communications operators such as Vodafone is
essential to their work.

“Refusal
to comply with a country’s laws is not an option. If we do not comply with a
lawful demand for assistance, Governments can revoke our license to operate,
thus preventing us from providing services to our customers,” Vodafone says in
its report.

“Our
employees who live and work in the country concerned may also be at risk of criminal
sanctions, including imprisonment. We, therefore, have to balance our
responsibilities between respecting our customers’ right to privacy against our
legal obligation to respond to the authorities’ lawful demands... As well as
our duty of care to our employees – recognizing throughout our broader
responsibilities as a corporate citizen to protect the public and prevent
harm.

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About Tanzania Consumer Advocacy Society

Tanzania Consumer Advocacy Society (TCAS) is a private, voluntary, non governmental, non partisan and non profit making organization that was registered in July 2007 under the Companies Act of 2002, Chapter 212 of the law of Tanzania as a company limited by guarantee.
Our Vision;-
TCAS’s Vision is a Tanzania where consumers are aware of their rights and have ability to claim their rights. Where markets are accountable and more responsive to consumer’s needs and interests.
Our Mission;-
To provide advocacy platform that would make consumers voices heard, raise consumer’s awareness of their rights, build consumer’s ability to claim their rights and make markets accountable and more responsive to consumer’s needs and interests.